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Regulatory • October 1, 2005

The Soft Story Story: An Update

On September 1, Berkeley’s Housing Advisory Commission (“HAC”) recommended changes to the Municipal Code which will have a direct impact on 400 residential apartment buildings with about 5000 living units.Assuming the Council approves the HAC recommendation, the owners of these buildings will be required to notify their tenants that the buildings may be unsafe during an earthquake.They will also have to provide the City with a “seismic analysis” covering potential hazards and the steps needed to bring the building to current standards.The proposal does not include a requirement for retrofitting.Nor however does it include any provision for passing through the costs of either the study or any resulting work to tenants.

A Little Background:

Prior to 1997, Berkeley’s codes allowed for buildings which have “open face” ground floors, often used for parking, utilities and the like, with the living units being on upper floors.Sometimes these “soft stories” were wood-framed, sometimes they were concrete.This design, which accommodated the ever-increasing demand for off-street parking was both legal and popular throughout California.

A consensus has gradually developed that an open or “soft” story on the bottom floor, where there is inadequate lateral bracing, is more prone to collapse during earthquakes, thereby endangering the residents of upper floors. In 1997 the City modified its building code to minimize this danger in new construction.There remains the question of pre-1997 buildings. Should the City require retro-fitting?If so, who should pay for it?Normally of course the second question would not arise.In a non-rent controlled town, the landlord would pay, but would be able to pass through the costs to the extent existing rent levels are below market.In Berkley however, rent control laws prevent any pass-throughs to existing tenants absent excruciating inquiries by the Rent Board, which in nearly all cases denies the landlord’s application.

Needless to say, the building people and HAC (which is dominated by rent control advocates) could not agree on the pass-through issue.The result is a partial approach:

-The City will notify owners (and will record the notice) of all buildings with 5 or more units which it considers to be unsafe as the result of soft story design and construction.

-Owners will have 180 days to appeal the designation.The real point of an appeal would be to avoid having to publicly post (in 50 point type) a notice to the effect that the building could be unsafe.An effective appeal would require an engineering analysis showing that the building, as built, does not presently pose a seismic hazard. An example would be a soft story structure that has already been retrofitted.

-If there is no appeal, or if the appeal is denied, the owner must post the structure, notify individual tenants, and engage a structural engineer who would analyze whether the building poses a moderate or severe danger, and the steps required to mitigate the danger.

As written, the proposal does not require retrofitting.Talk about this issue has been explicitly put off because of the bigger, thornier issue of cost, and the impact of rent control. While it may be assumed that more than half of the units involved are being rented at or near market rates, at least 305 of them are at pre-Costa Hawkins, i.e. pre-1996, rates.In these situations it is doubtful whether an Owner’s cash flow will be sufficient to fund substantial retrofitting costs that may be imposed by the City.

The HAC proposal now goes to the City Council.BPOA invites member input, preferably by e mail (bpoa@bpoa.org) on this complicated issue.

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